Search

Copyright

Become a Fan

Stupid employer tricks

The always-excellent Carolyn Elefant has this post, "U.K. Lawyers Get the Message: 1-800-U-R-Fired," over at one of my favorite blawgs, Legal Blog Watch. Carolyn reports (citing a Daily Mailstory) on how 14 trainee solicitors (which is British for "baby lawyers") were laid off by Freshfields in London. Freshfields sounds like an organic supermarket chain, but is actually the fourth-largest law firm in the world and a member of Britain's "Magic Circle" (which sounds like a Harry Potter sequel, but isn't).

Like most major law firms, Freshfields has had to trim its staff in response to the worldwide economic crisis. What makes them different is the way they did it: by leaving the unlucky 14 a voicemail. Not only that, but instead of partners doing the deed, they staffed it out to HR.

What's British for power tool?

Apparently, Magic Circle firms respond to bad press the same way their American cousins do: by defending the indefensible. The Mail story quoted a firm flack:

It was not ideal from our perspective but we were trying to get the information out as soon as possible. We did not want to take the chance of them hearing first from someone else.

To be fair, Freshfields gave the laid-off lawyers a severance to soften the blow. How much? you might ask. Well, the firm spokesperson wanted to be discreet:

Those people that we have not retained received an ex-gratia payment. We feel it would not be appropriate to confirm the exact amount.

Of course, of course. And it's not like that word would get out. A secret's a secret, old chap. Oh, wait. What's this? The Internet? Bloody hell!

Turns out the firm gave severance payments of a whopping £700.

Apparently, "ex-gratia" is British for cheap.

This cowardly method for firing people is in danger of becoming a trend. Last year, the Chicago Sun-Times fired people over the phone. Recently, the Boston Globereported on a local social-media-software company revealing layoffs via Twitter and blogs. And Gruntled Employees' very first post, nearly three years ago, was on firing by email: "Radio Shack Deletes 400 Workers, Common Sense."

File this under "Just because you can, doesn't mean you should." Employers: don't fire people by phone, email, voicemail, Twitter, or blogs.

My daughters go to elementary school in Newton, Massachusetts. The principal — who is, sad to say, retiring this year — is a brilliant, caring, dynamic educator named Christine Moynihan. One of our favorite things about her — and there are many — is that from time to time, she makes schoolwide announcements over the loudspeakers in which she awards chidren “Wows.”

What is a "Wow"?

A “Wow” is a short description (maybe three or four sentences) of something a pupil did to earn the Wow (yes, it's self-referential; get over it). Examples include working extra hard on a particular project, helping a classmate during a difficult situation, or showing unusual courtesy or friendliness or determination. Dr. Moynihan says the Wow winner’s name and describes what he or she did to earn the Wow. That's it. It’s short, it’s public, it’s concrete, it’s earned — and it makes the kids feel great.

Compare this to the workplace. In the workplace, we don't have Wows. We have annual performance reviews.

I hate annual performance reviews. As an employer, I hate writing them. They take a lot of work, and they often feel artificial. As an employee (back in the day), I used to hate getting them. They never seemed like they appreciated the employee that I was, and instead focused on fitting me into little boxes. And as an employment lawyer (defending employers), I hate reading them. Too often, I read the annual performance evaluations of employees who were fired for poor performance, only to find no written record of the employee’s suckiness. And you can imagine how that looks to a judge or hearing officer — an unbroken string of “Satisfactory” marks. Swell.

Why do performance reviews bite? For a number of reasons: They’re hard to write. We want to be fair and accurate, but we don’t want to sound like a machine. And for some reason, criticisms seem worse in writing than when spoken, mainly because the written word has no facial expressions or nonverbal cues to soften the blows. Plus we know that written criticisms can fester and grow inside a personnel file, and we know that employees generally have a right to read their personnel files. So we tend to pull our punches, and leave out details of poor performance — details we may regret not having in some future litigation defense.

All in all, I think many managers miss the point of performance reviews. If the goal is to get the employee to continue to perform well or to start to perform better, then why are waiting a year to do that? Why are we using a hyperformalized, bureaucratic form to convey these feelings? And if the point of the review is to correct behavior, doesn't this seem like a funny way to do it?

We need a better way.

I propose that we replace formal annual performance evaluations with a workplace equivalent of the Wow.

Enter Twitter.

One of the great beauties of Twitter — and I believe one of the reasons it has been so transformatively successful — is its 140-character limitation on messages ("tweets"). In fact, I don’t see it as a limitation (in a negative sense) at all. In many ways, knowing that you have only 140 characters to get your meaning across is very liberating. It forces you to eliminate everything unnecessary. It forces you to choose your words very carefully. It forces you to edit. It may take a little more time to write something that short than it would take to write something a little longer, but that’s OK.

So tweets are limited in length, just like the three- or four-sentence Wows at my daughters’ school, only shorter. Come to think of it, this isn’t really a novel idea. It was in fact the central premise of Ken Blanchard’s 1981 classic management guide, The One Minute Manager.

Tweets are also public. Like the Wows being broadcast over the school PA system, a Twitter message is broadcast over the internet to anyone who happens to be following you, plus anyone who happens to be searching for something you’ve written about. Once you’ve pressed the “update” button, your tweet is out there for the world to see.

And finally, it’s unique and free form. There are no boxes or multiple-choice answers or “satisfactory/unsatisfactory/NA” responses to contend with. It’s difficult to cut and paste from previous forms. The writer actually has to put thought into the tweet.

So I propose replacing the annual performance review with a twitterable evaluation — a “twevaluation,” since the Twitterverse loves neologisms. Some guidelines:

First and foremost, if you haven't already, sign up on Twitter.

Identify the employee and give the Wow. If the employee’s already on Twitter, use their Twitter name with the @ symbol.

Use the hashtag #twevaluation at the end of the tweet. That makes it easier for people to find them. Don’t know what a hashtag is? Look here.

Keep it to 140 characters, including the name and the hashtag. But remember, Twitter isn't text messaging. Most Twitterers use actual English words, not SMS abbreviations like "c u l8er." Very simple space savers (like "&") are OK.

Don’t use a twevaluation to say something bad about an employee. Trust me as someone who defends companies in employee lawsuits: you don’t gain anything by publicly dissing an employee. Save it for a direct message. Better yet (much better yet), be a person and do it in person.

I'll start. Follow me at @jayshep and read my #twevaluations as they come in. Or search Twitter for #twevaluations.

Then contribute your own. You don't have to give every employee one. Start with a couple, and add them when your employees earn them. It's not about keeping score; it's about recognizing good performance and encouraging more of it.

Now I can't personally vouch for the authenticity of the letter, and Engadget describes its source as an anonymous CompUSA employee. Nor could I confirm the identity of CompUSA's HR director, although there is an HR person with that name in the DFW metropolitan area. It certainly looks like an authentic WARN Act letter, which the government requires.

But what a letter. I appreciate that CompUSA had a lot of employees to fire, but couldn't they have bothered to insert the unlucky recipient's name in each letter? (You know, guys, they have computers that can do that now.) Did they need to keep reminding the fired worker that CompUSA is incorporated (at least for now) — four times in a three-paragraph letter? Couldn't they get a human being to actually sign the letter? Repeating the name in boldfaced italics doesn't count.

You're firing people. Have the decency to act like it means something to you. It certainly means something to the employees. A personalized letter — or even a seemingly personalized mail-merged special — with a real human being's signature makes a difference. It might not seem like a lot — it might even seem like a waste of time — but people notice these things.

Getting fired sucks. But getting fired suckily (by email, by form letter, during the holidays) sucks even more. Worse, it makes the fired employees more disgruntled, and thus more likely to sue. You've already messed up the big things (running your company into the ground); at least try not to mess up the little things.

Bonus irony note: Check out CompUSA's tagline:

Obviously they didn't get it. They didn't get it at all.

Here are some other voices on the topic:

Tampa Bay's Channel 10 News has a story on the company's
remarkable retention-bonus scheme: if you work the next two months
until the store closes, you get — wait for it — a whole week's pay! (Woo.) The station has posted a PDF of the "Separation Bonus Plan"; the story is here: "Employees cry foul over CompUSA closings"

The incomparable New York Times technology columnist David
Pogue had this explanation for the company's failure back when they
began their store closings last March: "The Gutting of CompUSA."

[Updated 20 December 2007 to clarify the Circuit City references, and to add more on what CompUSA could have done right. Big shout out to Martin Ebel, the top Commonwealth of Massachusetts civil-rights lawyer and frequent Gruntled commenter (which is different from a commentator). Another big shout out to Christopher Mirabile, world-class general counsel, for pointing out the Engadget post.]

US Attorney General Alberto Gonzales resigned today, largely because of how he mishandled the firing of nine Assistant US Attorneys last year. We covered the story last March in "Attorneygate moral: Don't fire stupidly," where we sagely predicted that Gonzales would be out by Opening Day. (Missed it by this much.) For comprehensive background on the firings and their aftermath, read the excellent summaries at Peter Lattman's ever-fabulous Wall Street Journal Law Blog here and at the Washington Post's site here.

Gruntled Employees doesn't much care about the politics of the issue. Instead, the important lesson for employers and managers and HR professionals is the one we talked about in March:

The moral is: Fire who you want to fire, own the decision, and then shut up about it.

It's hard to fire someone, if you're any kind of a real human being. And it should be, because it's someone else's life your messing with. You should struggle with the decision. But once you've made the decision, you have to act on it and own it. Resist the temptation to make explanations and excuses that (you hope) will get you or your company off the hook.

In the Attorneygate case, who is to say whether firing the AUSAs was fair? Doesn't matter (except to the AUSAs, their families, and the decisionmakers who pulled the trigger). The law says that they are subject to removal by the President. Period. They are — like most American workers — employees at will.

After-the-fact explanations for why you fired someone rarely tell the whole story. The real answers are usually incredibly complicated, and don't sound as clean as a better-manufactured reason. But the manufactured reason isn't the truth. And people will generally learn the truth, eventually. And when people start to see the holes in your just-right story, they're going to think you're covering up something more nefarious, like discrimination, or politics, or favoritism.

The Attorney General could have said this: "We fired these prosecutors because we wanted to make a change and put some other people in those spots. And the law says we can." It might not make for a pretty story, but it was probably the truth. The story would have died in a few days, and Alberto Gonzales might still be running the Justice Department and waiting for Justice Stevens to retire. Instead, it's Monster.com for him.

Last week, I was blasting overwrought and overwritten employee handbooks. (See "The world's shortest employee handbook.") I called attention to the Alabama A&M University personnel manual and its bereavement-leave policy in particular. The bereavement policy is robotically impersonal. Imagine being a valued member of the A&M faculty or staff, losing a family member, and then having to parse this:

Staff members shall, upon request, be granted up to three (3) days annually of bereavement leave for the death of a parent, spouse, child, brother or sister, grand parents [sic], grand parents-in-law, grandchild, son or daughter-in-law, mother-in law, father-in-law, brother-in-law, sister-in-law, step children, children-in-law, aunts, uncles, nieces, nephews, and first and second cousins. Other relationships are excluded unless there is a guardian relationship. Such leave is non-accumulative, and the total amount of bereavement leave will not exceed three days within any fiscal year. If additional days of absences are necessary, employees may request sick or annual leave, after providing an explanation of extenuating circumstances.

Now compare this sterile handling of employee-family death to the following tale from Brian McGrory's column in last week's Boston Globe. McGrory writes about a man named Jack Pichnarcik, whose 16-year-old son Mark died of leukemia. McGrory then writes about how the man's boss, trucking-parts-company owner Brian Pomerleau, treated his employee:

When Mark went into the hospital last November, Pomerleau told Jack to go be with his son, however long it was, and rest assured he wouldn't miss a day of pay.

He slipped Jack a couple of thousand extra dollars here and there over the next few months.

On the eve of Mark's death, Pomerleau quietly picked out a cemetery plot and made all the funeral arrangements himself, then headed to Boston to tell the Pichnarciks that everything was ready and funded, no questions asked or money accepted.

To me, Pomerleau shrugged it off, saying, "Hey, I made a few extra dollars in my life, so it's always nice to help someone you know."

This is the right way to be a boss. If employers acted more like Brian Pomerleau than like the handbook drones of Alabama A&M, they would attract better talent, and their companies would be more successful. Corporate bean counters who obsess over whether a bereaved employee took a day too many or lost a relative too distant should rethink their careers and find work that keeps them away from people.

Brian McGrory's complete column, called "Final Say," is here. Its title refers to the column's being his last, as the Globe has named Brian its news editor. Congratulations, Brian, and keep up the fine work.

We've talked before about HR professionals' and lawyers' propensity to overwrite when it comes to employee policies. (See, for example, "A two-word corporate blogging policy.") We make a lot of money writing personnel manuals for clients. But a question we often ask is: "Do you really need one?" While it's understandable and appropriate for an employer to make sure that its employees know what the rules are, a comprehensive employee handbook with Hammurabiesque (admittedly, not a word you see often) edicts on employee conduct can cause more harm than good.

The most common downside to having a personnel handbook is the risk of unintentionally giving up management rights and creating inadvertent employee contracts (as opposed to "advertent" ones?). Caselaw abounds where companies have written handbooks setting out rules for employees to follow only to have a court conclude that the employer is also contractually obligated to follow the handbook. And many courts have held that the lawyerly disclaimer buried in the introduction ("Management reserves the right to blah blah blah ...") doesn't get the company off the hook.

Another problem with handbooks — this one cited less often — is the creation of an impersonal, rigid structure that encourages employees to "game the system." Employees are smart when it comes to getting what they want. If a policy creates a loophole that allows more time off if you call it "personal time" instead of "sick time," you will see a rise in personal-time usage. This is not my being cynical; this is my recognizing that employees, like all humans, are (often) rational actors.

Finally, a thick manual of dos and don'ts sends a message that you don't trust your employees, or that you consider them wayward children. (By the way, why do people think you pluralize the noun "do" with an apostrophe? You don't. Apostrophes make things possessive, not plural.) Some policies are important to spell out, like how vacation accrues. And some policies are legally mandated, like sexual-harassment policies (in many states). But too many policies are the result of HR and legal types hyperlegislating conduct in the workplace. For example, dress codes or bereavement policies that go on for more than a sentence or two. You're better off without this paternalistic nonsense.

For an example of policies run amok, check out the manual of Alabama Agricultural and Mechanical University. The thing's so long that the table of contents is a set of hyperlinks. Do not read this while driving or operating heavy machinery. Here is the bereavement policy:

Staff members shall, upon request, be granted up to three (3) days annually of bereavement leave for the death of a parent, spouse, child, brother or sister, grand parents [sic], grand parents-in-law, grandchild, son or daughter-in-law, mother-in law, father-in-law, brother-in-law, sister-in-law, step children, children-in-law, aunts, uncles, nieces, nephews, and first and second cousins. Other relationships are excluded unless there is a guardian relationship. Such leave is non-accumulative, and the total amount of bereavement leave will not exceed three days within any fiscal year. If additional days of absences are necessary, employees may request sick or annual leave, after providing an explanation of extenuating circumstances.

What about second cousins once removed? This is what an employee who just lost a loved one should be reading? This is the kind of stuff that gives HR and lawyers a bad name. (By the way, "grand parents" means mothers and fathers who are swell. I think they meant "grandparents.")

Now before my law partners lock me away, I should say that there are situations or workplaces that call for a comprehensive manual. And if a client really feels the need for a handbook, we'll prepare one that protects the client and conveys its wishes without all the silly stuff.

But for the strategic employer who views its workers as its most important asset and wants to promote an atmosphere of professionalism and trust, let me propose the world's shortest employee handbook:

"Respect others."

(Now, wait. Before you accuse me of breaking out the zither and the "Kumbayas," hear me out. As I've said many times before, our roles as HR professionals, employment lawyers, and managers all boil down to the notion of showing employees respect. It says here that disgruntled employees are just gruntled employees who have been dissed. (Convenient, huh?) Employees you don't treat with respect are the ones most likely to sue you (see the discussion on firing employees with "retained dignity"). And I'm not making these pronouncements based on a Pollyannaish view of the world. Instead, I'm making these observations based on 13 years of defending employers from lawsuits. End of self-defense bit.)

Think about it: what policies in your typical handbook can't be distilled into the two words "respect others"?

Policies about harassment and discrimination and office romance are all about respecting coworkers.

Policies about trade secrets and computer usage and even attendance are all about respecting the company.

Policies about dealing with customers or answering the phone or about handling complaints are about respecting the customers.

Even policies about drugs and alcohol are all about respecting yourself.

Employees who follow this Rule Number One (and Only) will be valuable members of your team. Employees who fail to respect others should no longer be, unless you feel they deserve another chance.

Two words. Think of how much paper you'll save.

I know I'm going to take some heat for this, especially from my own office ("Quit telling people not to hire us, you idiot!"). But I'd love to get a discussion going. Bring it on.

OK. Time to weigh in on the Justice Department's disastrous firing of the US Attorneys, but from an employment-law perspective instead of a political one. For some background on the story, go to Peter Lattman's always-excellent Wall Street Journal Law Blog. His posts on the topics are archived here. The Washington Post has a nice summary here and a handy chart with art here.

Here's the short version: The Justice Department fired eight United States Attorneys in late 2006. (A US Attorney is the senior federal law-enforcement officer in his or her judicial district; there are 93 districts in the country.) The President appoints the US Attorneys, subject to the Senate's confirmation. Their terms are four years long, but they are subject to removal by the President (see 28 U.S.C. 541(c)). Just like that. In other words, they are employees at will, like 99 or so percent of the rest of us.

So the President fires these eight prosecutors. So what? They're political appointees, and he wants to replace them with new political appointees. The law allows it. Big deal.

Here's the problem, and the lesson for all employers. The White House could have said, "Yes, the President has decided to replace these eight US Attorneys. They're political appointees who serve at the pleasure of the President. It is the President's pleasure to replace them, and the law says he can do that." But the White House and the Justice Department instead started playing the explanations game. Rather than just owning the firings and then shutting up, they started giving reasons and stories that kept changing: Performance problems. Not political. It was Harriet Miers's idea. It was Karl Rove's. Attorney General Alberto Gonzales wasn't involved. OK, he was. (For a summary of the shifting stories, see Dan Eggen's "Accounts of Prosecutors' Dismissals Keep Shifting" in the March 17 Washington Post. Another cool graphic with problematic email quotes is here.)

Now everyone's up in arms over this. Congress wants explanations. Constitutional showdown and all that. Counterstories about how great the prosecutors were. Heck, one of them — David C. Iglesias — is widely reputed to be the model for the main character in A Few Good Men. Great. Now you've gone and fired Tom Cruise. And we're talking the old version: Oscar-nominated, box-office guarantee, Top Gun, Jerry Maguire Tom Cruise — not Scientology-promoting, psychiatry-slamming, couch-jumping Tom Cruise.

The problem wasn't necessarily the firing. Who are we to say that these eight (effectively) at-will employees should have kept their jobs. It's not our decision.

The problem was saying too much about it, and then having the stories change. Once that happened, Congress and the press smelled the blood in the water. Don't be surprised if we hear from some plaintiff-side employment lawyers, too. And Attorney General Gonzales will be sending out résumés by the time Opening Day rolls around.

The moral is: Fire who you want to fire, own the decision, and then shut up about it.

A growing number of employers are making employees sign agreements that require any disputes to be heard by an arbitrator instead of a court. (Usually the agreements say "any and all" disputes, even though once you say any, you've got all covered. Lawyers: "Why use one (1) word when you can use three (3)?" But I digress.)

The thinking behind mandatory arbitration is that it is faster and cheaper. The unspoken thinking behind it, especially for large employers, is that any given arbitrator is more likely to have future cases with the employer than with the particular employee, and the arbitrator wants the large employer to use him or her again in the future. I don't buy that, because it suggests that arbitrators will subvert a case to curry favor with a large employer. I believe most arbitrators are ethical, and would never do that.

But arbitration is not good for employers. (By the way, I'm only talking about employment arbitration — not labor arbitration involving unions, which is a whole 'nother kettle of fish.) And there are three reasons why:

The parties choose the arbitrator.But Jay, you say, this sounds like a good thing. It's not like you pick your judge in a court case. Isn't it good to have some control? You might think, and employers often do. But it's not. Here's why:

An arbitrator only gets a case when both sides agree to choose that arbitrator. (Well, duh, you say.) The way it works is that the American Arbitration Association or whatever group you're using gives you a list of a dozen or more available arbitrators. The company's lawyer and the employee's lawyer then pick a few acceptable choices from the list. When both sides find one they agree on, bingo — you got yourself an arbitrator.

And how does the lawyer choose? Based on his or her own experience with the arbitrators, the experience of friends and colleagues, and the arbitrators' general reputation. And now we come to the problem:

If an arbitrator has a reputation as being more employee friendly than employer friendly, I'm not going to pick him or her. (Again: duh.) And the converse is true, too. So an arbitrator has a built-in self-interest to come down the middle — to rule in favor of management and employees in roughly equal proportions. And that's the problem, because employees don't normally win half of the cases filed. For example, at the Massachusetts Commission Against Discrimination, employees win probable cause — that is, they get to proceed with their cases — only about five to fifteen percent of the time.

If an arbitrator was known to come out in favor of the employee only five to fifteen percent of the time, do you think any plaintiff's lawyer would agree to pick that arbitrator?

The only way to fix this problem is to remove the parties' ability to choose the arbitrator. Until that happens, avoid arbitration.

There are no rules of evidence or binding precedent.Some people incorrectly think that this streamlines the process, making an arbitration less complicated and expensive than a court case. But rules of evidence — while sometimes pesky and seemingly arcane — are designed to increase the chances that testimony and evidence reflect the truth. Hearsay rules, the bane of second-year law students and many litigators, were designed to weed out made-up testimony.

And binding precedent — the notion that earlier cases with greater authority control the current case — means that the parties know the rules beforehand. Without needing to follow precedent, arbitrators are free to come up with their own rules. While arbitrators universally try to be fair, their rulings can sometimes be ... well ... arbitrary.

Arbitral rulings are nearly impossible to overturn.Winning an appeal in court is very difficult. But short of misconduct or flagrant bias on the part of an arbitrator, it is next to impossible to get a court to overturn the arbitrator's decision.

Just last week, Ross Kerber of The Boston Globereported on MassMutual's attempt to get a court to overturn an unfavorable arbitral ruling. The story reports that the arbitration panel had concluded that ousted CEO Robert J. O'Connell had been unjustly terminated and that he was entitled to $50 million in severance benefits, even though it found that he had had affairs with two women (including the company's general counsel). The company sued in Suffolk Superior Court to have the panel's decision overturned. But the court declined, holding that there was "no evidence of any failings in the procedural aspects of the hearings." The court did not confirm that O'Connell should have won the arbitration; only that he did win.

The story reported that the company planned to appeal further. Good luck with that.

Mandatory arbitration of employment might sound like a good idea to employers. It's not. If you want to save money on employment disputes, consider mediation — a much more valuable ADR (alternative dispute resolution) technique.

* * * * *A bit of language trivia: The expression "a whole nother" (used above referring to the fish kettle) is an example of tmesis. It's like they have a name for everything.

Quick recap: The introduction to the problem is here. The first step in saving HR— establishing a Talent Department run by the
Chief Talent Officer — is here. The second step is to get rid of the nickel-and-dime
stuff — the traditional, unimportant, uninspiring personnel administrivia.

Step Three is just as important: getting rid of the knucklehead stuff — the often-well-intentioned but inadvertently small-minded rules that accomplish nothing except giving HR a bad name.

An example, straight from the I-swear-I'm-not-making-this-up department:

A friend of mine just started a new job. With the holiday season around the corner, she was delighted to learn that the employer had an annual holiday party that was always a fun affair. Spouses were welcome. Even boyfriends and girlfriends. That is, if you had been dating for eight weeks. Otherwise, sorry. HR rules.

It's nice that the company wants to reward its employees with a little Festivus action at the end of the year. And it's even nicer to spend the extra dough to include the missus or mister at the fancy dinner. And it's further even nicer to extend that holiday cheer to the unmarried but reasonably committed. But you can just imagine the brow-furrowing that went on to decide where to draw the line. It might have gone something like this:

HR rulemaker: "We can't limit it to married couples. That could be discriminatory. What if the couple isn't married because they're gay? Or commitophobic?"

Other HR rulemaker (looking anguished): "But we can't just open the doors to a couple that just met yesterday! That wouldn't do."

"Good point. How about one months?"

"Too short. Could go either way. How about six months?"

"Two. They've probably met the parents by then."

"Sold!"

OK: we kid because we love. But there had to be some thought that went into this, and it led to the ridiculous eight-week rule at my friend's company. And this is part of the reason why HR often lacks the respect they otherwise deserve. Well-intentioned rules that end up being silly.

Have the party — great! Let the employees bring dates — fine. But stay out of the business of qualifying those dates. That's just knucklehead stuff.

Wal-Mart's in the news again as a model employer. A Pennsylvania jury assessed a $78.5 million damage award against the world's largest retailer for violating state wage laws. The court concluded that Wal-Mart had required employees to work off the clock and through breaks. Plaintiffs' lawyer Michael Donovan, who represented about 187,000 current and former employees in the class action, told reporters that the award could rise to $162 million including bad-faith damages and attorneys' fees. The AP story (via the San Francisco Chronicle) is here.

In his WSJ Law Blog, Peter Lattman has this quote from the company, showing how it wasn't really their fault:

"Many employees testified that they skipped, or cut short, their breaks by their own choice,'’ said a Wal-Mart spokesman in an e-mailed statement. “Wal-Mart strongly discourages this practice and should not be penalized when an employee chooses to do this on his or her own.'’

Poor Wal-Mart. Having its employees take advantage of it by "choosing" to work for free. No fair.

It's too easy to pile on Wal-Mart over treating its workers poorly. What's more interesting to me as a management lawyer is the plaintiffs' attorneys' using electronic evidence to help prove their case. Apparently, the jury saw evidence that showed employees logged on to their registers when they were not on the clock.

Payment-of-wage cases are very hard for employers to win. You either paid the workers or you didn't. It's stupid to try to get away with not paying employees. It's even stupider to think that plaintiffs' lawyers aren't going to find out.